PureSpectrum General Supplier Terms

We may amend these terms and conditions by posting the revised terms on the company website. You are responsible, and agree, to check for any changes on each occasion before using the PureSpectrum Technology.

1 Agreement structure.

1.1 Structure. This Agreement consists of and incorporates by reference:

(a) the cover page(s) containing signature blocks (the “Cover Page”);

(b) these General Terms;

(c) the PureSpectrum Addendum and any other addenda attached hereto.

1.2 Precedence. To the extent of any conflict or inconsistency between any two components of this Agreement, the conflict or inconsistency shall be resolved by applying the following order of precedence: (a) the applicable Addendum; (b) the Cover Page; and (c) these General Terms. Notwithstanding any language to the contrary therein, no terms or conditions stated in Supplier’s purchase order or other order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be void.

1.3 Entire agreement. All of the documents listed in Section 1.1 constitute the entire agreement between the parties and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning their subject matter. Any terms contained in any Supplier purchase order or other document purporting to add to, modify, or supersede terms in this Agreement are expressly rejected by PureSpectrum and will be void, unless agreed to in a writing signed by each party.

2 Services.

2.1 Ordering Services. PureSpectrum will provide and make the Services available to Supplier pursuant to this Agreement and any Economic Terms Addendums.

2.2 PureSpectrum Addendum. If the parties enter into an Economic Terms Addendum, the relevant PureSpectrum Addendum shall be incorporated into this Agreement by reference.

2.3 Economic Terms Addendum. By entering into an Economic Terms Addendum under this Agreement, Supplier and their Affiliates agree to be bound by the terms of this Agreement as if it were an original party hereto. Economic Terms Addendums referencing this Agreement shall be deemed incorporated into this Agreement by reference.

3 Term and termination.

3.1 Term. This Agreement will begin on the Effective Date and end on the Expiry Date (the “Initial Term”). If a Renewal Period is specified on the Cover Page, the Agreement will automatically renew for successive terms (each a “Renewal Term”) of duration equal to the Renewal Period, unless either party gives written notice of non-renewal at least 180 days before the expiration of the then-current term. Together, the Initial Term and any Renewal Terms are the “Term”.

3.2 Termination for cause. A party may terminate this Agreement and any Economic Terms Addendums for cause:

(a) on written notice to the other party if the other party materially breaches this Agreement and either the breach cannot be cured or, if the breach can be cured, the breaching party has not cured such breach within 30 days of receiving written notice of such breach from the non-breaching party;

(b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or

(c) on the other party’s dissolution or ceasing to conduct its business.

3.3 Effect of termination of Agreement. Upon termination of this Agreement, neither party may enter into subsequent Economic Terms Addendums that incorporate the terms of this Agreement. Termination of this Agreement will not, by itself, result in the termination of any Economic Terms Addendums previously entered into (or extensions thereof), and the terms of this Agreement will continue in effect for the purposes of such Economic Terms Addendums until an Economic Terms Addendum itself is terminated.

3.4 Survival. The following will survive any termination of this Agreement: (a) Sections 3, 4.3, 4.4, 5, 6, 7, 8, 9 and 10 of these General Terms, and any section of this Agreement which, by its nature, is intended to survive.

4.2 Invoicing and payment terms. Supplier will invoice PureSpectrum for all fees specified in all Economic Terms Addendums, in accordance with any invoicing schedule set forth on such Economic Terms Addendum, and in accordance with a month-end statement provided by PureSpectrum to Supplier. For the avoidance of doubt, in the event of any discrepancy between the fees owed between PureSpectrum and Supplier, PureSpectrum’s calculation shall prevail. Unless otherwise specified in an Economic Terms Addendum:

(a) fees will be invoiced in arrears;

(b) invoiced charges are due to be paid by PureSpectrum to Supplier net 75 days from the date the invoice is received;

(c) all monetary amounts are denominated in United States dollars and all payments shall be made in United States dollars.

(d) Supplier must accrue a minimum balance due of $5,000 before payment will be sent.

(e) Invoices received more than 30 days after a month-end statement provided by PureSpectrum to Supplier will be rejected and considered null and void.

5 Ownership.

5.1 PureSpectrum retention of rights. Subject to the limited rights expressly granted hereunder, PureSpectrum reserves all rights, title and interest in and to (a) the Services; (b) any Documentation or other content or technology provided by PureSpectrum to Supplier in conjunction with the Services; and (c) any and all intellectual property rights related to any of the foregoing. Supplier must not remove, alter or obscure in any way any proprietary rights notices of PureSpectrum or its licensors or suppliers on the Services or any of the materials described in the previous sentence. There are no implied licenses granted to Supplier under this Agreement, and all rights not expressly granted to Supplier in this Agreement are reserved by PureSpectrum. Additional provisions regarding intellectual property rights may be set forth in Service Addenda.

5.2 Supplier retention of rights. Subject to the limited rights granted by Supplier hereunder, PureSpectrum acquires no right, title or interest from Supplier or Supplier’s licensors under this Agreement in or to the Supplier-Provided Materials.

5.3 Feedback. Supplier grants PureSpectrum a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Supplier relating to the operation of the Services.

6 Mutual indemnification.

6.1 Indemnification by PureSpectrum. PureSpectrum shall defend Supplier against any claim, demand, suit, or proceeding made or brought against Supplier by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates a third party’s copyright, trademark or trade secret recognized as such under the Uniform Trade Secrets Act (“Claim Against Supplier”), and shall indemnify Supplier for any damages, reasonable attorneys’ fees and costs finally awarded against Supplier that are specifically attributable to a Claim Against Supplier, and for any amounts paid by Supplier under a court-approved settlement of a Claim Against Supplier. In the event of a Claim Against Supplier, or if PureSpectrum reasonably believes a Service may result in a Claim Against Supplier, PureSpectrum may at its discretion:

(a) procure for Supplier the right to continue using the Service;

(b) replace the Service with a non-infringing equivalent;

(c) modify the Service so that it becomes non-infringing; or

(d) terminate the Service in exchange for refunding to Supplier any prepaid fees covering the remainder of the term for which such Service was to be provided had it not been terminated under this paragraph (d).

6.2 Exceptions to indemnification by PureSpectrum. Notwithstanding Section 6.1 (Indemnification by PureSpectrum), PureSpectrum will have no obligation under that section or otherwise with respect to any infringement claim based upon:

(a) any unauthorized use of the Services or use of the Services in breach of this Agreement;

(b) any data, information, content, or other materials furnished by Supplier; or

(c) any combination of the Services with any other items not provided by PureSpectrum,

(collectively, the “Excluded Claims”).

6.3 Indemnification by Supplier. Supplier shall defend PureSpectrum against any claim, demand, suit, or proceeding made or brought against PureSpectrum by a third party resulting from or relating to:

(a) an allegation that Supplier’s use of the Services in breach of this Agreement infringes or misappropriates the intellectual property rights of a third party or violates applicable law;

(b) any Excluded Claim;

(c) any claim that any Supplier-Provided Materials infringes or violates the trademark, copyright, patent or other intellectual property rights or right of privacy or publicity of any third party (except that Supplier will have no obligation under this Section or otherwise with respect to any such third party claim based upon any unauthorized use, modification, or combination of Supplier-Provided Materials by PureSpectrum); or

(d) Supplier’s breach of any acceptable use policy contained in a Service Addendum,

(any of which is a “Claim Against PureSpectrum”), and shall indemnify PureSpectrum for any damages, liabilities, reasonable attorneys’ fees and costs finally awarded against PureSpectrum that are specifically attributable to a Claim Against PureSpectrum, and for any amounts paid by PureSpectrum under a court-approved settlement of a Claim Against PureSpectrum.

6.4 Conditions to indemnification. A party’s obligations to indemnify the other party under this Section 6 (Mutual indemnification) are conditioned on the indemnified party:

(a) promptly giving the indemnifying party written notice of the Claim;

(b) giving the indemnifying party the option of taking sole control of the defense and settlement of the Claim (provided that the indemnifying party may not settle any Claim unless the settlement unconditionally releases the indemnified party of all liability); and

(c) providing to the indemnifying party all reasonable assistance and cooperation, at the indemnifying party’s expense.

For the purposes of this Section 6.4 (Conditions to indemnification), “Claim” means a Claim Against Supplier if the indemnified party is Supplier, and a Claim Against PureSpectrum if the indemnified party is PureSpectrum.

6.5 Exclusive remedy. This Section 6 (Mutual indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim or action described in this Section 6.

7 Warranties.

7.1 Disclaimer of warranties. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY SET FORTH OTHERWISE IN THIS AGREEMENT, ALL SERVICES ARE PROVIDED “AS IS” WITH ALL FAULTS, WITHOUT ANY WARRANTY OF ANY KIND, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, ACCURACY, AND EFFORT IS WITH SUPPLIER. SUPPLIER ACKNOWLEDGES AND AGREES THAT IT HAS NOT RELIED ON ANY ORAL OR WRITTEN INFORMATION OR ADVICE, WHETHER GIVEN BY PURESPECTRUM, ITS SUPPLIERS, DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, PURESPECTRUM EXCLUDES AND DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, REGARDING THE SERVICES INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.

7.2 Supplier data. SUPPLIER UNDERSTANDS AND AGREES THAT THE SUBMISSION OF ANY DATA OR MATERIALS TO PURESPECTRUM THROUGH OR IN CONNECTION WITH SUPPLIER’S USE OF THE SERVICES IS DONE AT SUPPLIER’S OWN DISCRETION AND RISK AND THAT SUPPLIER WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO ITS DATA OR MATERIALS, AND FOR ANY DAMAGE TO SUPPLIER’S COMPUTER SYSTEMS OR LOSS OF DATA THAT MAY RESULT FROM THE DOWNLOAD OR UPLOAD OF ANY CONTENT. SUPPLIER IS SOLELY RESPONSIBLE FOR CREATING BACK-UPS OF ITS MATERIALS.

8 Limitation of liability.

8.1 Limitation of liability. EXCEPT FOR CLAIMS FOR INDEMNIFICATION UNDER SECTION 6 (MUTUAL INDEMNIFICATION), AND FOR A PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS:

(a) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT; AND

(b) PURESPECTRUM’S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNTS PAID BY PURESPECTRUM TO SUPPLIER UNDER THIS AGREEMENT DURING THE 1 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.

Supplier agrees that PureSpectrum’s suppliers and licensors will have no liability to Supplier of any kind under or as a result of this Agreement.

9 Confidentiality.

9.1 Confidential Information. As used in this Agreement, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Supplier’s Confidential Information shall include Supplier-Provided Materials. PureSpectrum’s Confidential Information shall include the Services. Confidential Information of each party shall include the terms and conditions of this Agreement (including, for the avoidance of doubt, all Economic Terms Addendums), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that:

(a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;

(b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party;

(c) is received from a third party without breach of an obligation owed to the Disclosing Party; or

(d) was independently developed by the Receiving Party.

9.2 Use, disclosure and protection of Confidential Information. The Receiving Party shall not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement. Except as otherwise authorized in writing by the Disclosing Party or as otherwise expressly permitted under this Agreement, the Receiving Party will limit disclosure of the Disclosing Party’s Confidential Information to its and its Affiliates’ employees, contractors and agents who need access to such information for purposes consistent with this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care).

9.3 Exceptions to disclosure obligations.

(a) Disclosure to representatives. Each party may disclose the terms of this Agreement (including any Economic Terms Addendum) to its fiduciary professional advisors, including its auditors, accountants and attorneys without the other party’s prior written consent. Each party may disclose the terms of this Agreement (including any Economic Terms Addendum) to any third party that is a prospective financier, investor or acquirer of some or all of such party’s business or stock (provided that any such third party to which the terms of this Agreement are to be disclosed signs a written confidentiality agreement appropriate to limit use and disclosure to evaluating such financing, investing or acquisition transaction).

(b) Compelled disclosure. The Receiving Party may disclose the Disclosing Party’s Confidential Information if the Receiving Party is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prompt prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure or seek a protective order. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

9.4 Return of Confidential Information. The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party upon the termination of this Agreement. Notwithstanding the foregoing, the Receiving Party may retain the Disclosing Party’s Confidential Information solely to the extent that such Confidential Information is retained only in the Receiving Party’s electronic archives and backup storage databases for record keeping purposes, provided that all such retained Confidential Information remains subject to the restrictions set forth in this Section 9 (Confidentiality). At the Disclosing Party’s request, the Receiving Party will confirm in writing that it has fully complied with its obligations under this Section 9.4.

10 General.

10.1 Amendments; Waivers. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the parties. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

10.2 Anti-Corruption. Supplier represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of PureSpectrum’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Supplier learns of any violation of the above restriction, Supplier will use reasonable efforts to promptly notify PureSpectrum’s Legal Department (legal@PureSpectrum.com).

10.3 Assignment. Supplier may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement or delegate any of its duties under this Agreement to any third party without PureSpectrum’s prior written consent. Notwithstanding the foregoing, Supplier may assign this Agreement upon written notice but without obtaining such prior written consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of PureSpectrum. Any attempted assignment or transfer in violation of this section will be void.

10.4 Counterparts. This Agreement, including any Economic Terms Addendum, may be executed in multiple counterparts, each of which will be deemed to be an original and all of which taken together will comprise a single instrument. This Agreement and any Economic Terms Addendum may be delivered by facsimile or electronic document format (e.g. PDF), and facsimile or electronic copies of executed signature pages will be binding as originals.

10.5 Dispute resolution. The parties will endeavor to resolve any dispute arising out of this Agreement within 30 days (or such other length of time agreed to by the parties), acting in good faith, by progressive escalation through their respective management chains, starting with the primary business contacts for each party. If the parties are unable to resolve any dispute within 30 days, the dispute shall be referred to an appropriate senior management executive for resolution. If such executives are unable to resolve such dispute within 15 days, either party may commence a claim.

10.6 Export laws. Supplier shall comply with all applicable United States laws and regulations in its use of the Services and in performing its obligations under this Agreement, including any export laws. Each party represents that it is not named on any U.S. government denied-party list. Supplier shall not permit any third party to access or use Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation.

10.7 Force majeure. Any delay in the performance of any duties or obligations of a party will not be considered a breach of this Agreement if such delay is caused by circumstances beyond the reasonable control of such party, including strikes or other labor disputes (other than those involving such party’s employees), shortage of materials, supply interruption, epidemics, famines, fire, earthquake, flood, hurricanes, and other natural disasters, acts of God, war, riot, terrorism, and civil unrest.

10.8 Governing law; Jurisdiction. This Agreement is governed by the laws of the State of California without giving effect to any of its conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Each party agrees to the exclusive jurisdiction of the state and federal courts in Santa Clara county, California with respect to the subject matter of this Agreement.

10.9 Notices. Except as otherwise specified in this Agreement, all notices, permissions, consents and approvals under this Agreement shall be in writing and shall be deemed to have been given if sent to the other party at the contact details set forth on the Cover Page (or set forth on an Economic Terms Addendum if such notice is in relation to a specific Economic Terms Addendum) by: (a) personal delivery; (b) confirmed fax; (c) courier; (d) certified or registered mail (postage prepaid and return receipt requested); (e) email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Such notices will be effective upon receipt or when delivery is refused by the recipient. Billing-related notices to Supplier may be addressed to the relevant billing contact designated by Supplier.

10.10 Relationship between parties. Supplier’s relationship to PureSpectrum is that of an independent contractor, and neither party is an employer, agent or partner of the other. Supplier will not have, and will not represent to any third party that it has any authority to act on behalf of PureSpectrum.

10.11 Remedies. Except where remedies are expressly stated in this Agreement to be sole and exclusive remedies, the parties’ rights and remedies under this Agreement are cumulative.

10.12 Severability. If any provision of this Agreement is unenforceable, such provision will be modified and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

11 Interpretation.

11.1 Interpretation. Section headings used in this Agreement are for convenience only and have no legal effect. As used herein, the term “including” means “including without limitation”.